Law, sex and dicta:

The Hindu

It is not rare in the Indian judicial oeuvre to see sound justice being mixed up with irrelevant obiter dicta, for some of the judges in our superior judiciary do tend to pontificate and sermonise when required only to reason, or seek refuge in social mores when law, precedent or practice is available to fall back upon. However, even with some allowance for superfluous observation, the Madras High Court’s view that pre-marital sex between an unmarried man and woman, otherwise unencumbered by any third party interest, amounts to marriage is truly outrageous. The remarks of Justice C.S. Karnan cannot be ignored as mere obiter dicta, as much of what he says is in some way related to his ultimate decision — allowing monthly maintenance to a woman sought to be disowned by a man with whom she had lived and begotten two children. Physical consummation between a man above 21 and a woman above 18, arising out of “sexual cravings” would be considered a “valid marriage” and they become “husband and wife”, he argues. Also, he adds a strange observation that when a couple seek to separate after being in a sexual relationship, the ‘husband’ cannot marry anyone without getting a divorce from the ‘wife’. 

None would disagree with the judge for placing co-habitation above customary or religious rites when it comes to assessing the status of a relationship. Or for concluding that there was enough in the man’s conduct to say that he can no more disavow his relationship. It may even be seen as progressive that the Court takes note of the essence of a relationship — which resulted in sustained co-habitation and the birth of children — rather than its technical or legal status in granting maintenance. Yet, the problem with Mr. Justice Karnan’s assertions is two-fold: they seek to incorporate a highly personalised view of sexual behaviour into the concept of marriage, a concept that is based on law and practice and not on social or personal opinion. Also, marriage involves specific rights and responsibilities and these cannot be lightly conferred based on mere sexual behaviour. Such an approach limits the legal notion of marriage to just sexual union; and assumes, as it were, that any sex ought to be marital to emancipate it from its baser connotation. Secondly, none of what the judge has said has any basis in law, either modern and codified or customary. Nor is it based on any precedent, although a Supreme Court verdict in 2010 was available for support: the Court had then specifically recognised a live-in relationship as one akin to a marriage in the context of the Protection of Women from Domestic Violence Act, 2005. 

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